Posted on: 8/9/2012
Dante M. Filetti, Goodman Allen & Filetti
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The defense of medical malpractice cases is perhaps the most challenging of all personal injury trial work. Changing societal norms, an expectation for perfection, favorable patient outcomes and accountability, the complexity of the medical issues, and the impact of lawsuits and indemnity payments on health care providers, to include data bank reports, scrutiny by state medical boards, increased professional liability premiums, and recredentialing and insurance plan participation issues, are only some of the more significant reasons for this development. Much is at stake for health care providers and there is a greater need today to dedicate the resources necessary to the defense of medical malpractice cases. One of the key resources defense counsel can utilize is the legal nurse consultant.
A nurse with substantial clinical experience should be an essential member of every medical malpractice defense firm. Legal nurse consultants are trained medical professionals who possess unique skill sets and offer a much needed perspective on the interrelationship between the practices of medicine and law. They are not paralegals and a job titles such as a litigation paralegal of nurse paralegal are both inaccurate and a disservice to their key role in the defense of medical malpractice cases. The true legal nurse consultant is a nurse who, among other things, works in the legal field and works hand-in-hand with defense counsel in a medical consultant capacity.
Regrettably, not all legal nurse consultants are utilized to maximize their contribution to the defense effort. Some attorneys simply don’t want to relinquish responsibility to someone who is not a legal professional. Other attorneys believe nurses should function only as task-oriented, billable hour machines who do mostly clerical work, such as preparing subpoenas for medical records, regurgitating chronologies of care that often consist of no more than verbatim collections of records obtained in discovery, and scheduling meetings. Nurses who function in this capacity are underutilized and offer little more than clerical assistance. Some nurses are also simply ill-equipped to provide the services counsel need.
Legal nurse consultants should be utilized to bridge the gap between the legal framework of the case and the medical nuances of the care and treatment at issue. The complicated nature of medicine requires a nurse of advanced knowledge, ability, and clinical experience. In addition, the role and value of the legal nurse consultant is frequently determined by the nature of the relationship and level of trust between counsel and the legal nurse consultant, a relationship often forged over years of working together. The defense of malpractice cases requires a team effort, and counsel who can check their egos at the door and delegate responsibility to those better equipped to address the complex medical issues we often face will achieve the best results for their clients. A good legal nurse consultant helps assure our better understanding of the case and often facilitates a stronger working relationship with expert witnesses.
The job description that follows this article is one prepared by Kathy Clark, my legal nurse consultant, someone I have worked closely with for over 15 years—someone I respect greatly, trust implicitly, have complete confidence in, and consider an indispensible part of the defense team. This job description evolved over time because of our shared experience defending health care providers. Kathy’s value is clearly recognized by the clients and carriers we serve.
The role of the legal nurse consultant should be more analytical and scientific in nature. Legal nurse consultants analyze the theory of the medicine, work with the attorneys to develop defense strategies, delve into the physiology of the medical issues, and put the medical pieces of the puzzle together. Perhaps their greatest contribution is the development of expert testimony to support defense theories as to both standard of care and causation, and serving as the principal liaison with expert witnesses. Expert reviews are a costly component of any defense effort; however, the effective utilization of legal nurse consultants can significantly reduce expert reviews costs. An experienced legal nurse consultant can prepare meaningful chronologies that highlight only the most important aspects of the medical care at issue, draft deposition digests or summaries that reduce the time experts spend on irrelevant matters, and provide direction to experts that allow them to focus their reviews. Health care providers frequently relate better to other health care providers, and a skilled legal nurse consultant can often break down barriers that may exist between the expert and counsel.
What are the characteristics and traits that set apart legal nurse consultants? Although there are many skill sets a legal nurse consultant requires, as reflected in part in the accompanying job description, the key characteristics and traits are identified below.
Substantial Clinical Experience
There is no substitute for experience and legal nurse consultants who have little or no substantive clinical experience in a demanding area of nursing seldom possess the ability to analyze the complex medical issues we deal with on a day-to-day basis. On the other hand, legal nurse consultants with substantial clinical experience in fields like critical care or obstetrical nursing typically have keen analytical skills, think independently, and react to a quickly changing landscape. The same qualities that make a nurse competent in clinical setting are what make them effective in a medical-legal environment.
Excellent Analytical Abilities
The ability to identify medical issues central to the defense of the case is the most essential attribute a legal nurse consultant can possess. There is a tendency, even with counsel, to get hung up on the minutia of a case instead of focusing on the issues that will ultimately have a bearing on the outcome. Legal nurse consultants who can spot issues, research the medicine, develop experts, and work effectively with counsel are critical to the defense effort. The legal nurse consultant should act as devil’s advocate and challenge us to understand the medicine. Our ability to comprehend the medicine and effectively represent our clients is enhanced greatly by legal nurse consultants who have the ability to analyze the most complex of cases. Their greatest contribution to the defense effort is not always measured in billable hours, but instead by the added value they bring to the analysis and meaningful defense of cases.
Exceptional Communication Skills
Oral and written communication skills are essential to the success of any professional. Legal nurse consultants who develop chronologies of care, draft deposition summaries and digests, and communicate with clients, experts, treating health care providers, claims representatives, and counsel must be effective communicators. They must be able to identify key aspects of the care and summarize treatment in a succinct, easy-to-understand manner. If they function as the principal liaison with experts, legal nurse consultants must first gain their trust and confidence, which is often achieved through the written and spoken word.
Most successful people possess sound judgment and common sense. We trust and depend on the people who demonstrate these qualities on a consistent basis. A legal nurse consultant, like counsel, must be able to recognize what is important and what isn’t. As a general rule, there are few issues that will determine the outcome of any case, and knowing what those issues are and focusing your defense is critical. Trial work frequently involves quick response and it is extremely reassuring to have a legal nurse consultant who possesses the analytical ability and sound judgment to assist counsel at trial.
What sets apart the good LNC from the exceptional legal nurse consultant is confidence. Confidence is bred from clinical knowledge, experience, time and opportunity. If given the opportunity to truly function as a legal nurse consultant and work closely with counsel, the legal nurse consultant will develop confidence and add greatly to the defense of medical malpractice cases. A confidant legal nurse consultant is one who willingly accepts responsibility, is assertive, steps up to any challenge, and feels comfortable communicating his or her opinions.
Legal nurse consultants are true professionals. They are an integral part of the defense effort. Admittedly, my views have been influenced by my own experience, but I have also been fortunate to work with someone I truly respect and whose talents and contributions over the years cannot be measured using only objective criteria. I encourage defense counsel to utilize legal nurse consultants in their practice. If you find someone who meets the characteristics identified above, I am confident your experience will make you question how you ever functioned without one.
Legal Nurse Consultant Job Description
- Create, maintain and modify expert database and solicit participation from attorneys to continually update same
- Meet with attorney to discuss new case information and defense strategy; identify action items related to expert review and discovery needs
- Draft detailed summary of treatment for submission to regulatory boards conducting investigations
- Attend initial client meeting
- Attend other client meetings as directed by counsel
- Conduct interviews of staff on location, as needed
- Assist in drafting discovery and responding to discovery as directed
- Communicate with litigation paralegal to determine which providers to subpoena and specify medical records to include in request
- Obtain treatment records and create an organized, condensed, indexed and highlighted set of records for use by attorneys and experts
- Develop and update chronology of care
- Identify scope of expert reviews
- Search for experts and research the credentials and testimonial history of potential contacts
- Identify and make initial contact with expert witnesses
- Communicate with carrier to obtain approval for experts and negotiate fees, if necessary
- Prepare documents for review by expert witnesses
- Draft case summary and initial letter to expert witnesses
- Cultivate relationship with client and defense experts and serve as defense liaison
- Provide case updates and materials to defense experts
- Meet with defense experts either independently or as directed by counsel to ascertain their opinions and assess their presentation as a potential witness.
- Draft memorandum to file summarizing experts’ opinions and their anticipated effectiveness at trial
- Draft expert witness designation
- Coordinate defense expert deposition and/or trial testimony
- Meet with client and experts to prepare them for deposition and/or trial testimony
- Draft/revise outline of questions for experts at deposition and/or trial
- Attend discovery depositions of experts and potentially adverse treating providers
- Draft summaries of expert deposition testimony and communicate with carriers re: same
- Digest expert deposition transcripts
- Serve as a consultant to all attorneys and staff on medical issues and defense strategy
- Assist other defense counsel in identifying or providing information regarding potential experts
- Conduct medical literature research for all attorneys and assist in obtaining copies of useful literature
- Prepare medical literature designations
- Assist attorney and carrier in the valuation of cases by determining extent of real medical damages and provide advice during settlement discussions
- Create trial binders and expert files
- Meet with attorneys to review defense strategy and identify equipment and materials needed
- Assist attorney in determining the order of witnesses; work with experts to schedule their testimony and make travel arrangements/accommodations
- Meet with attorney to identify documents from medical records to be used for trial exhibit and redact as necessary
- Meet with attorney to discuss possible demonstrative aids; design/create timelines, charts, graphs, etc; identify useful anatomical illustrations and arrange for preparation of exhibits; obtain models, instruments and/or medical supplies for use at trial
Attend and participate at trial:
- Assist in jury selection
- Coordinate witnesses and meet with experts immediately before their testimony to inform them of any change in strategy
- Observe testimony of witnesses and consult with attorney regarding areas of focus for questioning
- Assist in preparation of daily reports to carriers by summarizing expert testimony and sharing information gathered from jury observations
- Follow up with experts regarding case outcome and to request final invoice for expert services
- Prepare medical records and expert materials for case closure
- Perform various administrative tasks related to staff development, office maintenance, filing systems, etc.
Dante M. Filetti
Goodman, Allen & Filetti PLLC
215 Brooke Avenue, Suite A
Norfolk, Virginia 23510